# Record and brief — The New Process Fermentation Company, Appellant, vs. Magdalena Maus, Albert C. Maus, Frank A. Maus and Mathias Maus > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1886_298%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1886 ## Text ee TRANSCRIPT OF RECORD. - SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, I!8326. No. 298. THE NEW PROCESS FERMENTATION COMPANY, 'e APPELLANT. | on): | MAGDALENA MAUS, ALBERT C. MAUS, FRANK A. MAUS | ee AND MATHIAS MAUS. j APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR | THE DISTRICT OF INDIANA. { : - ’ ; FILED SEPTEMBER 15, 1884. ° iin ya eine salleis lita ney Al arias 6 ih SUPREME COURT OF THE UNITED STATES. a | OCTOBER TERM, 1886. : ) No. 298. THE NEW PROCESS FERMENTATION COMPANY, APPELLANT. ' US. MAGDALENA MAUS, ALBERT C. MAUS, FRANK A. MAUS AND MATHIAS MAUS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR ‘THE DISTRICT OF INDIANA. Original. Print. | l RIO cence nine Senate sao 5 Soak Saisie baaehassiaedk Mccigllea Ghaespaldiid aiehiiiasoteiae ORT 0 SINE ag sorties des oe sha eens ane ae laa 2 I Exhibit—Leiters Patent No. 215,679 granted George Bartholomae, assignee of Leonard Meller & E. Hofmann, May 20, RIED kine - D 10 10 Appearance ena OO OMEN NE NE ee I AER INR ca Ment eh So NN cmt TN, Se ae Ua ee ee gE Ameer OE TERR Fe OF li. in spins Saas ones # Bas Bien Orders extending time to file answer of Casper A. Maus ef¢ al. ._-- -.-- 18 3 Mirae OE FER TEI OE OE ae acct: whitey sh tase nf ei simone 0 20 13 DE SE CI Es TENE ain isn Mico nnn cuisine 28 2 20 92 ION ois Scie Scent tee eerte semsanincinty | ss virin neat tesla haa a eats, Sts a woe ot IN t ~— an bn om Onder appeimting Gpecisi @xeMiner ~ 62 21 Complainants’ prima facie evidened ...... 2.65 ncn -~ Charter of The New Process Fermentation Co. .__----- -~--- as 32 : ’ . > © ~ a J ’ , Assignment of Letters Patent No. 215,679 from Geo. Barthol- omae to New Process Fermentation Co., February 19, 1880- oe ~ La ‘ew ss Pte oe pega JUDD & DETW “MILER, PRINTERS, WASHINGTON. be Se er INDEX. Original. Print. aettimony of Otto Twelteeen occ subs nc ks eins ses oo eis 45 a George Bartholomae —_-~- Breer, ven ease RO oe _ oO 4] erm ran” a ae aa ae Lee ee 52 44 . Testimony of Dr. ee en Teen erate tage Mtn crear tt Ok 53 44 * Jacob W. Loeper- ~-...- beret a Aaa oe ane Ca 60 52 iP pai lr 7060. Chancery. J. Maus, Frank A. Maus, and. Marutas A. : Maus. ; J Be it remembered that heretofore, to wit, at the November term of said court, on the 15th day of December, 1880, before the Hon- orable Walter Q. Gresham, one of the judges of said court, the fol- lowing proceedings in the above-entitled cause were had, to wit: “Comes now the complainant by Banning and Banning, its solic- itors, and files ite bill of complaint herein in the words fol- 2 lowing, to wit: To the honorable the judges of the circuit court of the United Stat for the district of Indiana: | “The New Process Fermentation Company,” of Chicago, Ilinois, a corporation duly organized and existing un os and by virtue of the laws of the State of Illinois, and a citizen of the State of []linois, brings this its bill against Magdalena Maus, a he Maus, Casper a Maus, Frank A. Maus, and Mathias A. Maus, « of the. city of In- dian: apolis, in the State of Indiana, and citizens of oo State of In- diana, doing business under the firm name and style of C: Maus, in sald city ; and the ‘reupon your orator complains and says— I. That prior to the 30th day of November, A. D. 1876, Leonard Meller, of Ludwigshafen-on- -the-Rhine, Bavaria, and E \dmund Hof- mann, of Mannheim, Baden, Germany, were the original and first inventors and discoverers of a new and useful apparatus and im- provement in processes for making beer, for which, upon due ap- plication, letters patent were issued by the French and Belgium governments to the said Leonard Meller and Edmund Hofmann, under the name and style of Leo. Meller & Co., dated, respectively, November 380, 1876, and February 28, 1877; that shortly after ob- taining said patents the said Meller and Hofmann explained said apparatus and process to George Bartholomae, of Chicago, I]linois, for the purpose and with the intention of introducing the same into this country and obtaining a patent therefor from the United States Government, and to that end and purpose constituted and appointed . the said Bartholomae their true and lawful agent and attorney ; that thereupon the said Bartholomae immediately introduced said ap- paratus and process into use at Chicago, Illinois, and took steps to procure letters patent of the United States therefor, but being per- sonally ignorant of and_ inexperienced in the requirements of the 1—208 Lot LD agi eS over ae Ae Pewee 2 THE NEW PROCESS FERMENTATION CO. VS. patent law. of the United States, and relying entirely upon the coun- sel and advice of i others in that respect, by inadvertence and mis- take he caused the application for such patent to be made in his own name and such patent to be issued to him personally, the same being No. 201,982, dated April 2, 1878; that some time after said patent had been issued the said Bartholomae and the said Meller and Hofmann ascertained that it should have been apphed for and issued in the nume of the said Meller and Hofmann as inventors and notin 1 96 of the said Bartholomae; that the TeUpo ynand on the 42th day oO f Fe bruary, 1879, and before said invention had been in public use or on sale in this country for more than two years, the said Meller and Hofmann caused an application to be filed in the Patent Office at Washington to secure letters patent of the United States to be issued to themselves, in due form of law, for said ap- paratus and process; that by an instrument in writing, duly re- corded in the Patent Office at Washington before the issuing of the letters patent apphed for, as last aforesaid, the said Meller and Hof-. man, for a valuable corsideration, sold, assigned, transferred, and ‘set over to the said George Bartholomae all their right, title, and in- terest in and to the said invention in and forthe whole of the 5) United States,and authorized and requested the Commissioner of Patents to issue the said letters pate nt t when granted to the said Bartholomae as the assignee of their entire right, titte, and in- terest in and to the same, for the sole use and be hoof of the said wate and his legal representatives ; that letters patent of the United States, No. 215,679, dated May 20, 1879, in due form were accordingly issued to the said Bartholomae, as the assignee of the said Meller and Hofmann, granting to him, his heirs, admtnistra- tors, and ame for the term of seventeen. years from the said 20th day of May, ). the full and exclusive right of making, using, and vending to hee to be used, the said invention, subject to the lim- itation prescr Ibed by section 4887 of the Revised. Statutes, by reason of the I'rench patent, dated November 80,1876, and the Belgitim patent, dated February 28, 1877, as by reference to said assignment and said letters patent, or certified copies thereof, here in court to be produced, and a copy of which patent is hereto attached and made a part of this bill, will more fully appear. If. That by virtue of.written assignments, given for good and yal- uable considerations and duly recorded inthe Patent Office at Wash- ington, your orator became and now is the sole and exclusive owner of the entire right, title, and interest in and to said letters patent No. 215,679, and 1n and to all damages occasioned by the infringe- ment of said patent, and all gains, profits, savings, and advantages made and received by others by reason thereof, and is by law entitled to sue for and receive the same to its own use. [iJ. That said letters patent are of great value and the public generally acknowledge and acquiesce in the validity thereof; that the following- named. brewers, and many others, have purchased licenses thereunder, namely: Bartholomae & Leicht Brewing Company, Conrad Seipp Brewing. Company, Matthew Gottfried, Bartholomae W Roesing, and Schmidt MAGDALENA MAUS ET AL. , 3 & Glade, of Chicago, Ilinois; the Phillip Best Brewing Company, Joséph Schlitz Brewing Company,and Valentin Blatz, of Milwaukee, Wisconsin ; George Ehret, George Ringler & Co., Jacob Hoffman, Jacob Ruppert, and Susann \ Kre ss, of New York C ity; Otto Huber, of Brooklyn, N. Y.; KH, Burkhardt, of Boston, Massachusetts - E. W. Voigt, August Goebel & Co., Charles Endriss, Kling & Co., Martz Bros., Frederick Ditmer, and A. Michenfel ler, of De troit, Michigan ; the Bartholomae Brewing Company, of Rochester, N. 'Y.: Albert. - Ziegle, of Buffalo, N. Y.; J. & A. MecKechnie, of Canandaigua, N. Y.; Christian a of Mendota, Illinois; Schalk Bros., and Joseph Heusler, of Newark, N. J.; Jacob Mall, of Cleveland, Ohio; J. Kuebelér & C o., of Sandus sky, Ohio; Pier, Danials & Co., of Pitts- burgh, Pennsy lvani: a; Bergner & Engel, of Philadelphia, Pennsy]- vania; Gunther & Gehl of Canton, Maryland; Geo. Bauenschmidt, of Baltimore, Maryland; August Fuerman, of Watertown, Wiscon- sin; Christian Heurich, of Washington, D. C.; Geyer Bros., of Rah- way, N. J.; Mayer & Bachman, of Chi fton, N. Y.,and Anton Meyer, of Terre Haute, Indiana; that of said brewers above named the said Phillip Best Brewing Company, Schmidt & Glade, A. Goebel & Co., and Geyer Bros. settled and purchased licenses after suits for in- fringement of said patent No. 215,679 had been commenced against them, respectively, and that in the aggregate all of said brewers have paid or agreed to pay for such licenses and for apparatus for applying said invention a very large sum of money, to wit, the sum of more than one hundred thousand dollars. 4 LV. That since the granting of said letters patent No. 215,679, and at divers times and occasions between th: at time and the- filing of this your orator’s bill, Magdalena Maus, Albert C. Maus, Casper J. Maus, Fr: ank A. Maus, and Mathias A. Maus, the defend- ants herein, well knowing the premises, and in infringement of said letters patent No. 215,679, and in violation of the exclusive rights of your orator the reunder, and without the license of vour orator or the said Bartholomae, or any one ever interested in said patent, at Indianapolis, to wit, at the district aforesaid, have used and still continue to use the said invention patented as aforesaid, but to what extent your orator is unable to say; that your orator has notified the defendants of the said infringement and requested them to desist therefrom, but they have continued the same; and that by reason of said infringement great injury has resulted to your orator and great gains and profits have accrued. to said defendants, the full amount of which is unknown to your orator, but which in equity belong to it and should be accounted for by said defendants and paid over to your orator as the avails of its exclusive rights aforesaid and profits and gains which it would have derived therefrom but for the unlawful acts of the said defendants. V. That your orator has no adequate remedy in the premises, save in a court of equity, where matters of this nature are properly cognizable. V I. Wherefore your orator prays— That the defendants m: ly answer the premises and m: Ly fully Peek the number of barrels of f beer they have mi inufactured under 4 THE NEW PROCESS FERMENTATION CO. VS. said patented process and the number of apparatus they have used in applying said process since the said 20th day of May, 1879. That the defendants, their agents, attorneys, Serv ants, and work- men, each and every of them, may be restr: ained and enjoined, as well preliminary and provisionally as perpetually, from the infringe- ment of said patent No. 215,679. That an account may be taken of the number of barrels of beer that defendants have manufactured under said patented process and of the number of apparatus they have used in applying said process since the date of said patent No. 215,679, and of the gains, profits, and advantages they have derived therefrom, and that the defend- ants may be decreed to pay over to your orator any and all the gains, , profits, and advantages, to be duly d¢ termined, which they have made, derived, or received from the use of said patented invention in violation of your orator’s rights as aforesaid; that tlie defendants may be decreed to pay the costs of this suit, and also all damages resulting to your orator from their use of the said patented inven- tion, together with such inerease over the actual damages suffered ‘as is warranted by law and may seem to your honors Just and proper, and that your orator may have such other and further. relief in the premises as to this honorable court shall seem meet and just and agreeable to equity. ‘To this end cc it please your honors to grant unto your or itor— 1. The writ of subpcena issued out of and under the seal of this soneen i court, directed to the said defendants, Magdalena D Maus, Albert C. Maus, Casper J. Maus, Frank A. Maus, and Mathias A. Maus, commanding them by a certain day and under a certain penalty to be and appear in this honorable court, and then and there to answer the premises and stand to and abide by such order and decree as may be made against them. 2. The writ of injunction, as well prelimin: iry and provisional as perpetual, issuing out of and pais the seal of this honorable court, enjoining and restraining the said defendants, Magdalena Maus, Albert -C. Maus, Casper J. Maus, Frank A. Maus, and Mathias MAGDALENA MAUS ET AL. 11 nor of the process of preparing and preserving beer for the market by holding it under controllable pressure of carbonic acid gas, nor of the method of preserving beer ih a marketable condition after it has passed the kraeusen stage by holding it under pressure of car- bonic acid gas by automatic pressure, nor of the process of treating beer when in the second fermenting stage, nor of the process of treat- ing beer in the course of its manufacture by holding-it in closed vessels under pressure of carbonic acid gas automatically controlled; that for a long period, viz., more than a year, before the application for the letters patent sued on the respondent heréin, Albert C. Maus, at the city of Nashville and State of Tennessee, was the inventor and discoverer of the process of preparing beer for the market, of treat- ing beer when in the kraeusen stage, of preserving beer for the market, _of preserving beer in a marketable stage or condition, of treating beer when in the second fermenting stage, of treating beer in the course of its manufacture by holding and keeping it under auto- matic pressure of carbonic acid gas; which said process so 13 discovered by said Albert C. Maus is hereinafter fully de- scribed, and is the process now used by respondents and none other, which plaintiffs aver to be an infringement of the process and patent in the bill described, which said matters respondents expect to prove by said Maus, who 1s a resident of the city of Indianapolis, Indiana, and by other persons whose names are at the present time unknown to respondents, which, when discovered, respondents pray. leave to insert.and set forth in their answer. As to the combina- tions claimed by complainant in specifications numbered 7 and 8 of said letters patent, the respondents say, as they verily believe and charge, that the same are not new, either severally or in combina- tion, and are not patentable under the law; that the pipes, con- nections, valves, cocks, and combinations described in said subdi- visions have been well known and in public use for twenty years past, in the city of Indianapolis and throughout the United States, which facts. respondents expect to prove by Erastus QO. Frink, of the city of Indianapolis, Indiana, and many other witnesses, whose names are not known to respondents, which, when discovered, they pray leave to insert in this answer. , Respondents further answering, as to said combinations described in subdivisions of the letters patent Nos. 7 and 8, say that 14 they never have used the same except for a short time as an experiment, and are not now using the same, and therefore if the plaintiffs’ patent as to the same is valid these defendants have never infringed upon the same, as they verily believe. Respondents further answering said bill, except that part thereof which claims a patent on, the process therein, described, say that. both before and since‘the commencement of this action said plaintiffs: represented and informed said respondents that all they claimed to be entitled to hold by the letters patent, sued on was the process of holding and controlling beer automatically under carbonic acid gas; that they made no claim to any other part of said letters pat- ent and no claim to the water column, bungs, connections, and com- binations, and that respondents might use every thing referred to i: oe THE NEW PROCESS FERMENTATION CO. VS. in said letters patent except the process, and respondents say they believed said statements and representations and relied thereon, and that plaintiff should be estopped from making any claim now against respondents except what she may le establish to said process. Respondents further say that said process and said alleged dis- covery and invention claimed by complainant in her letters patent . sued on, as respondents are informed and believe, and there- 15 fore state, had been described in a certain publication prior to complainant’s supposed discovery thereof in a book known as “School of Beer Brewing,” book one, on page 358, published and sold to the public in the city of Cincinnati, State of Ohio, in the years 1863 and 1864, long before said complainant’s supposed dis- covery. Respondents further say that, as they are informed and believe, and therefore state, the inventions and process claimed by plaintiff in her letters patent had been discovered and published and de- scribed and patented prior to the supposed invention and discovery. claimed in the bill, viz., by letters patent No. 90549, issued to Dretickson May 25th, 1869, and also by letters patent, issued to EKickineger Sept. 22d, 1868, No. 82394, and also by letters patent issued to Thos. R. Hicks April 9, 1867, and also by letters patent issued to Henry Schtandeman June 11, 1878, and also by letters pat- ent issued to Otto Zwitusch & KE. Hertman—application filed Dee. 11, 1878— | All of which matters respondents expect to prove by certified copies of said letters patent and specifications, and by Erastus O. Krink, of the city of Indianapolis, Ind., and by other witnesses, whose names are now unknown to respondents, which, when dis- covered, they pray leave to insert 1n this answer. | 16 Respondents further say that the apparatus and process used by defendants is as follows, viz: A bung, through which a hole is bored from top to bottom, is inserted in the bung-hole of a cask; a small rubber hose about five feet long is attached with one -end, by means of a brass top, tightly to the‘hole at the top of said bung. ‘To the other end of this piece of hose a tin vessel is attached to receive the foam or beer that may be forced through this piece of hose with the escaping earbonic acid gas. This tin vessel is air- tight and large enough to hold about two gallons, and is provided at the bottom with a small tap for drawing off the béer that may accumulate in it. Now, where the short piece of hose enters the tin vessel another piece of hose enters also, and leads to and is attached to a stand-pipe about three inches above its base. This stand-pipe is four inches in diameter, about fifteen feet high, and open at the top. It contains as much water as is requisite to afford the desired pressure under which we aim to prepare our beer. The pressure in the cask can be increased or diminished by in- creasing or lessening the amount of water in said stand-pipe, the whole forming a combination by which a uniform pressure 17 of carbonic acid gas is maitained in the eask, which we use . after the beer has gone into the shaving casks & nowhere else. If the beer in the cask generates more gas than is required to : cei ot | yep eihi ease tinal Makes nh * - amie x Ae eedaieinn anit A-seomad a a en A ek A EE I i a a a aE hak at ae o> yale S ane es MUR eee Gen eee tet pot Pa ~ ae e . * rn. > 3 * ee es MAGDALENA MAUS ET AL. : 13 establish the desired pressure it will escape through the rubber hose and the water in the stand-pipe to which the hose is attached. And for answer specially to the interrogatories propounded re- spondents, answering, say— Ist. ‘That they have not manufactured any beer whatever by. any process other than that last above described as being used by them, and by such process, as near as respondents are able to tell, they have manufactured — barrels of beer since May 20th, 1879. All which matters are things these defendants are ready and willing to aver, maintain, and prove as this honorable court shall direct,and humbly pray to be hence dismissed with their reasonable costs and charges in this behalf, most wrongfully sustained. | SMITH ann DUNCAN, HARRINGTON & HOWE, | Respondents’ Solicitors. STATE OF INDIANA, Marion County: Frank A. Maus, being duly sworn, deposes and says that 18 he — book-keeper for the respondents, who-are engaged in | the manufacture of beer, and that he has heard the foregoing answer read over,and he says that the matters therein stated as facts are true and the matters therein stated on information and _ belief are true, as he verily believes. FRANK A. MAUS. Subseribed & sworn to before me, a notary public In & for said county, this llth day of April, A. D. 1881. [SEAL. ] | GEO. F. KUHN, N. PL And at the same time comes the defendant, Casper A. Maus, - his solicitors, and, upon his motjon, the’ time for filing his answer herein is hereby extended to the first Monday of May next. And afterwards, to wit, at the May term of said —— on the 10th day of June, 1881, before the Honorable W alter Q. Gresh: am, judge as aforesaid of said court, the following further proceedings in the above-entitled cause were had, to wit: ; On motion of the defendants’ counsel, time for filing the answer herein is hereby extended to the first Monday in August next. And afterwards, to wit, at the May term of said court, on the 30th day of July, 1881, reer the Honorable Walter Q. Gresham, 19 judge as aforesaid of said court, the following. further proceed- ings in the above-entitled cause were had, to wit: Come now the defendants, by counsel, and file their answer herein in the words following, to wit: 20 The answer of Magdalena Maus, Albert C. Maus, Frank A. : Maus, and Ma ithias A. Maus, defendants, to the bill of complaint of {the N New Process Fermentation C ompany, complain- ant. These defendants, now and at all times hereafter, saving and re- 14 THE NEW PROCESS FERMENTATION CO. VS. serving unto themselves all benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties, and other imperfections in the said complainant’s bill of complaint contained, for answer thereto, and unto so much and such parts thereof as these defendants are advised is or are material or neces- sary for them to make answer unto, these defendants for answering, saith : That these defendants do not know and are not informed, save by said bill of complaint, whether said Leonard Meller and Edmund Hofmann received letters patent from the French and Belgian gov- ernments, respectively, as and for an invention of a new and use- ful apparatus and improvement in processes for making beer, and they leave the complainant to make such proof thereof as she shall be advised is material. And for answer to so much of said bill of complaint as alleges that , said Meller and Hofmann explained said apparatus and process to one George Bartholomae, of Chicago, Illinois, for the purpose and intention of introducing the same into this country and obtaining a patent therefor from the United States Government, and that, to accomplish that end, they constituted and appointed said Bartholo- mae their lawful agent and attorney ; these defendants further sev- erally say that they or any or either of them, to the knowledge or belief of the others or either of them, do not know and have never been informed save by the said complainant’s bill, and. they leave the complainant to make such preof thereof as she may be advised is material. : | And for answer to so much of said bill of complaint as alleges that said Bartholomae, on’ account of his personal ignorance and in- experience, by inadvertence and mistake, caused the application to be made for such patent in his own nameand procured such patent to be issued to him personally, these defendants deny thesame ; but, on the contrary, they say that, as they are informed and verily be- lieve, said George Bartholomae, at the time of his making applica- tion for and procuring the issuance to him of said letters patent, was well advised in the premises and was assisted by able counsel versed in the law, and said Bartholomae acted advisedly in all that he did in the premises. | And these defendants have been informed, and admit it to be true, that upon said application letters ‘patent of the United 21 States were granted and issued to said George Bartholomae, on the 2d day of April, 1878, for an alleged improvement in the process of clarifying and settling beer in a series of shavings casks, and for a certain apparatus for conducting such process; and these defendants further severally say that they, or any or either of them, to the knowledge or belief of the others or either of them, do not know and have never been informed, save by the said com- plainant’s bill of complaint, whether or not said George Bartholomae did properly make application for said patent, and did comply with all the requirements of law, and did have the said patent issued to him in due form of law, and leaves the complainant to make such proof thereof as she shall be advised is material. ae MAGDALENA MAUS ET AL. | 15 And, for answer to so much of said,bill of compiaint as alleges that said Meller and Hofmann afterward discovered that said Bar- tholomae had, by an alleged mistake, procured said letters patent to be issued to him in his own n: ime, and that thereupon they made application to secure letters patent of the United States to be issued to themselves for said apparatus and process, these defendants say that they are informed, and admit it to be true, that said Meller and Hofmann did cause an application to be filed in the Patent Office, in the city of Washington, for letters patent of the United States: but these defendants say that the claim of said Meller and Hofmann in their said applic ition was very much expanded over and above the claim of said Bartholomae; that whilesaid Bartholomae, in his said application, only claimed the process of clarifying and settling beer in the latter stage of its manufacture, in a series of shavings ‘casks, so as to produce. a uniformity and an automatic regulation of press- ure in the whole series of casks, the said Meller and Hofmann claimed in their said application the entire process of treating gig: under automatically controllable pressure of carbonic acid ga through every period of its manufacture, and whether in a uate ‘ask or a series of casks. And these defendants further admit that upon said application so made‘ by said Meller and Hofmann letters patent were issued by direction and upon the formal assignment of said Meller and Hof- mann to said George Bartholomae : but whether said assignment was made in good faith and: upon valid consideration, or whether the entire proceeding of Meller and Hofmann’s making their appli- cation and the subsequent proceedings, ending in the issuing of let- ters patent to said Bartholomae upon said ‘alleged assignment of said Meller and Hofmann, was not a plan contrived by : said Bar- tholomae to procure letters patent covering said enlarged and ex- panded claim, these defendants severally say that they, or any or either of them, to the knowledge or belief of the oth ers, or either of them, have never been informed, save by the complainant's bill of complaint, and they leavé the complainant to make such proof thereof as she may be advised is material. And whether said letters patent of the United States last above named as being issued to said George Bartholomae were issued to him after he or his said ‘assignors had fully complied with the re- quirements of the law tiese defendants further severally say that they, or any or either of them, to the knowledge or. belief of the others or either of them, do not know and have never been infor med, save by the bill of complaint herein, and they leave the complain- ant to make such proof thereof as she maybe advised is ma- terial. 22 And these defendants, further answering, say that they or any or either of them, to the knowledge or belief of the others or either of them, do not know and are not informed, save by the complainant’s bill of complaint, whether or not said George Bartholomae sold and assigned his right, title, and interest in said patent and alleged invention secured by said letters patent, or any interest therein, to the said New Process werent ation Company, 16 THE NEW PROCESS FERMENTATION CO. VS. complainant, and he leaves her to make such proof thereof as she may be advised is material. : And these defendants,on information and belief, deny that by virtue of any such patent and assignment mentioned in said bill of complaint said complainant became or ever was possessed of or vested with the exclusive right to make, use, or sell in the United States the alleged invention patented by said letters patent. And these defendants, further answering, deny that the said im- vention so patented by said letters patent are of great value or of any value, or that the public generally have acquiesced in or have acknowledged the complainant’s exemnsive right to the same or any portion thereof. And these defendants, further answering upon information and belief, specifically deny that the said Philip. Best Brewing Company, of Milwaukee, and the said Schmidt & Glade, of C hicago, and the said Geyer Bros., of Rahway, New Jersey, did settle and purchase ° licenses after suits for infringement of said patent had been brought ; but that, on the contrary, the said Philip Best Brewing Comp: ny s and the said Schmidt & Glade, of Chicago, having been ‘sued by the said George Bartholomae, who at that time claimed to be the owner of said invention and said letters patent, under an assignment from said Meller and Hofmann, did receive from said Bartholomae, upon his own solicitation and request, and without any charge or expense whatever to said Philip Best Brewing Company, or to said Schmidt & Glade, licenses to use the same, and at the request and expense of said Bartholomae, and without any charge to either said Philip Best Brewing Company or to said Schmidt & Glade, said Bartholo- mae caused an apparatus to be placed in each of their breweries; ‘and the said Bartholomae, after having obtained from the said Geyer Bros. an assignment of a certain application filed with the Com- missioner of Patents for an apparatus Involving substantially the same invention, and covering entirely the alleged process claimed by said Meller and Hofmann, did pay unto the said Geyer Bros., or to Philip Geyer, one of the Geyer bros.,a sum of money, not less than one thousand dollars, for the said assignment unto them of all the rights that might acerue to him, said Phili ip Geyer, under said application for a patent; that the invention described in the appil- cation of the said Geyer had been previously publicly used by said Geyer, and had been abandoned to the public by said Geyer five vears previous to the date of said letters patent No. 215,679. That the said application of Geyer is still now pending, and the said application, which involves an interference between the patent of the said Meller and Hofmann and the application of the said Philip Geyer, is now held pending by the assignees thereof for the purpose of avoiding an interference. And these defendants further show the court that they are in- formed and believe that the said suits brought by the said George Bartholomae against the said Philip Best Bre wing Company and Schmidt & Glade were discontinued without cost to said defendants and at the e x pense of said Bartholomae. MAGDALENA MAUS ET AL. 7. 23 And these defendants, further answer ing, say th at they are informed and believe that the said Bartholomae and the said Philip Best Brewing Company and Schmidt & Glade, with their respective: counsel, took a large mass of testimony, in the city of New York, in the above-mentioned suits, and that overwhelming proof was then and there adduced on the part of the defendants that the alleged process and apparatus claimed under letters patent 215,679 were old and unpatentable, and that thereupon the said Bartholomae discontinued the suits against the Philip Best Brewing Company and Schmidt & Glade. That in said causes said defendants were represente d by Otto Zweitusch and IF. W. Cotzhausen as counsel; that said Zweitusch was the owner Jointly with the said Philip Best Brewing Company .of a certain patented apparatus, which was then being used by said Philip Best Brewing Company, and for the use of which said suit was brought as and for an alleged -infringement; that thereupon said Zweitusch and said Bartholom: Le consolidat el ted their interests, and said causes were dismissed without said evidence ever being sub- mitted to the court, and the same is not now on the files of the court; and the said Zweitusch is now secretary of the complainant corporation, and said Cotzhausen is now retained as counsel by the complainant herein. And these defendants, further answering, say that said Meller and ‘Hofmann, the complainant’s assignors, as set out in the bill of com- plaint, are not the original and first inventors or discoverers of the process of giiicaneles beer for the market by holding it under au- tomatically controllable earbonie acid gas when in the kraeusen stage, nor of the process of treating beer when in the kraeusen stage by holding it in a vessel under pressure of carbonic acid gas, nor of the process of preparing and preserving beer for the market by holding it under automatically controllable pressure of carbonic acid gas, nor of the method of preserving beer in a marketable con- dition after it has passed the kraeusen stage by holding it under automatically controllable pressure of carbonic.acid gas, nor of the process of treating beer when in the second fermenting stage, nor of the process of treating beer in the course of its manufacture by holding it in closed vessels under pressure of carbonic acid gas au- tomatically controlled; that for a long period, viz., for more than ~~ year before the « applicati ion for the, letters patent sued on, Albert '. Maus, one of the defendants herein, at the city of, Nashville, in om State of Tennessee, was the inventor and discoverer of a certain apparatus caleulated and intended to be used in the process of pre- — goed for the market, of treating beer when in the kraeusen ‘stage, of preserving beer for the m: arket t, of preserving beer in the ge ible stage or condition, of treating beer when in the second fermenting stage, of treating beer when in the course of manufact- ure by holding and keeping it under automatically controllable pressure of carbonic acid gas, and which apparatus was actually used by him in the clarifying and settling of beer in the shavings casks, which process so discovered and used by said Albert C. Maus is hereinafter more fully described, and is the process now used by o—298 3 : nae | RES eras MeN DY Sor NA RA NO REO bP HS ia ab Awe ¥ THE NEW PROCESS FERMENTATION CO. VS. the defendants and none other, which the complainant avers to be an infringement of the process and patent in the bill of complaint described, re said matters these defendants ges to prove by said Albert C. Maus, who is a resident of the city of Indianapolis, Se Indiana, and by others whose names are at present unknown to these defendants, which, when discovered, they pray leave to insert and set forth in their answer. : 24 As to the combinations claimed by complainant in specifica- tions numbered 7 and 8 in said application ‘for said letters atent, these defendants say, as they vérily believe and charge, the ame are not new, either severally or in combination, and: are not patentable under the law; that the pipes, connections, valves, cocks, and combinations described in said subdivisions have been st known and in pubtic use for twenty years past in the city of India apolis and throughout. the United States, which f face saminda expect to prove by Erastus O. Frink, of the city of Indianapolis, State of Indiana, and many other witnesses, whose names are not now known to these defendants, which, when’ they discover, they leave to insert In this their answer. pray Ca And these defendants, further answering, as to said combinations nd apparatus caeies iu said subdivisions Nos. 7 and 8 of the eg, in said application for said ‘letters patent, say that they have never used the same, except for a short time as an experiment, and are not now using the same, and rhea if complainant’s patent as to the same is valid, these defendan s have never infringed upon the same, as they verily believe. These defenda nts, fu rther answering sald bill of complaint, except that part thereof which. claims a patent in the process therein de- scribed, say that t bot h before and since the commencement of this action said complainant represented to and informed these defend- ants that all she claimed to be — to hold by the said letters patent sued upon was the process of holding ‘and controlling beer automat ically under the pressure of carbonie acid Las, and that they made no claim by reason of any other part of said letters patent, and that they made no claim to the water column, Stati connec- tions, and combinations, and that respondents migh t use everything referred to in said letters patent except the process; and these de- fendants say they believed said representations and statements and relied thereon, and that said complainant should be estopped from making any claim against said respondents except what she may establish as to said process. And these defendants, further answering, say that they are in- formed, and believe it to be true, that for the purpose of deceiving the public, the description and specification of the said invention filed by the said Meller and Hofmann were purposely made to con- tain less than the whole truth relative to the state of the art of said invention, in this, that the said inventors claimed that previous to their invention it required twenty days to prepare beer for the mar- ket, after having been put in the shavings casks, when It required in truth but from four to eight days instead of twenty days, as alleged by said Meller and Hofmann a “ MAGDALENA MAUS ET AL. cee + And these defendants show to the court that tn the present state of the art, and without the application of the apparatus mentioned’ and described in said letters patent, beer can be produced in entirety in less than twenty days; and in many other respects these defend- ants allege that the said inventors have attempted to deceive the public by the statements contained in the said specification. ; And these defendants, further answering, say that they are 1l- formed, and believe it to be true, that the description of the » aileged inventien, as set forth in the specification annexed to the said letters patent No. 215,679, is incomplete and ambiguous, and the said specifi- cation does not show the method of making and using the said al- leged patented invention in such full, clear, and exact terms as to enable any person skilled in the art or scie nee to which it appertains to make and use the same. 25 And these defendants, further answering, say that they are informed and believe it to be true that the said invention and discovery was in fact invented and discovered by, and the same principle had been previously combined and used by another—that is to say, by one Paul Muehlhauser, at the brewery of Robert Port- ner, Esq., in Alexandria, Virginia; that the said Muehlhauser had . used substantially the same apparatus and process some seven years previous to the date of said patent No. 215,679, and prior to the time of the alleged invention and discovery by said Mellerand Hofmann that the said Muehlhauser is now a resident of the city of Baltimore, State of Maryland, and that the same principle had been known and used by one Philip Geyer, of Rahway, New Jersey, five years previous to the date of said letters patent No. 215,679, while he was foreman for PI] Lilip and William Ebling, at Morrisiana, in the State of New York; and, further, that the same principle and invention has been known and has been in continuous use by De Lavergne & Burr, brewers, of the city of New York, in the State of New York, who have used the said invention for more than four years last past ; and, further, the same principle and invention had been known and used by George Ehret, brewer, in the city of New York and State of New York, for ten years last past; and, further, that. the same prin- ciple and invention had been used by Henry Gunther at the brewery yf John Kress, in the city of New York, in the State of New York, for ten years last past; and, further, that the same invention and principle had been known and used by Schwaner & Amend con- tinuously for ten years last past; and, further, that the same princi- ple and invention had been known and used by oneJohn C. Schaeffer, also of the city of New York, State of New York, who had invente d and used, and sold to others to be used, an apparatus designed and intended to be used for the purpose of automatically controlling the pressure of gas generated by beer fermenting while in the shavings casks; and, further, the sameinvention and principle had been known and used by Mayer & Bachman, of Staten Island, in the State of New York, for seven years last past; and, further, that the same principle and invention had been known and used for many years. by one Keeley, a brewer, of Chicago, in the State of Ilmois; and, further, that ies same principle and invention had-been known and 20 THE NEW PROCESS FERMENTATION CO. VS. used by the public generally prior to the granting of letters patent No. 215,679 to the said Meller and Hofmann. And these defendants, further answering, say that they are in- formed and believe it to be true that the said invention and dis- covery, and the same principle and combination or the substantial and material parts thereof, patented in and by the letters patent mentioned in the bill of complaint aforesaid was patented on July 16th, 1S, by letters patent granted and issued to one Charles D. ‘Wolpers, who at [that] time resided in the city of Cincinnati, in the State of Ohio, and prior to the supposed invention and discovery thereof by the said Meller and Hofmann; and, further, that the pre- tended invention and discovery, and the same principle and com- bination or substantial parts thereof, was patented by one George Wallace by letters patent No. 62581, bearin 12 the date of f Mareh 5th, 1867 ; the said George Wallace now resides in the city of -Indianapo- lis, in the State of Indiana; and, further, that the pretended inven- tion and discovery, and the same princip le and combination or sub- stantial and material parts thereof, were patented in and by letters patent granted to one William Gilham_ by letters pat- ent bearing date the 13th day of June, 1871, said letters 26 patent being numbered 115,950, who at that time resided in the city of Richmond, State of Virginia, and prior to the sup- posed invention and discovery thereof by said Meller & Hofmann; and, further, the same invention and discovery, ard the same prin- ciple or substantial parts thereof, was patented and described in let- ters patent No. 68656, issued on the 9th day of April, 1867, to one Thomas R. Hicks, who then resided at New britain, in the State of Connecticut, and that the specification of the said Hicks fully and clearly describes the process claimed by the said Meller and Hof- mann, and prior to the supposed invention and discovery thereof by said Meller and Hofmann that the said patent of Thomas R. Hicks was assigned to Otto Zweitusch, and that he, as assignee of the said Hicks, did apply for a reissue of said patent, intending to obtain the process claimed and described by the said Meller and. Hofmann, but the same was denied by the Commissioner of Patents. And these defendants, further answering, allege that the said in- vention and discovery, and the same principle and combination or substantial and material parts thereof, described and patented by letters patent No. 215,679 was patented by kh. D’Heureuse, of the city of New York, in the State of New York, on the 3d day of August, 1869, No. 9: a $2; and also by letters patent No. 112,226, dated Feb- ruary 28, 1871, issued to the same person, and prior to the supposed invention of seid Meller and Hofmann. And these defendants further show that the said invention and discovery, and the same principle and eombination or substantial and material parts thereof, deseribed in and patented by said letters patent No. 215,679 was patented by letters patent of the United States as follows: Letters No. 294,687, dated June 11,1878, issued to Henry Schlaudemann; letters No. 205,572, dated July 2, 1878, issued to John M. Pfaudler; letters No. 208,771, dated October 8, 1878, issued nd MAGDALENA MAUS ET AL. 21 to Theodore F’. Straub, and letters patent No. 215,596, dated the 20th day of May, 1879, issued to Frank Fehr, and also divers others. And these defendants, further answering, say that they are in- formed and believe it to be. true that the said Meller and Hofmann were not the original and first or joint inventors of the invention by them described in their application for said letters patent No. 215,67: ), and they leave the complainant to make such proof thereof as she shall be advised is material.: And these. defendants, further answering, say that they are in- formed and believe it to be true that the said invention and dis- covery, and the same’principle and combination or substantial and material parts thereof, patented in and by the letters patent men- tioned in the bill of complaint aforesaid was mentioned and described In a printed publication—that is to say, in the Brewers’ Gazette, edited by John Flintoff and published in the city of New York—in the month of February, 1875, a publication published and issued and publicly circulated and distributed prior to the supposed in- vention and discovery by said Meller and Hofmann of the said | alleged invention, discovery, principle, and ‘combination, the said description being on page 38 in said publication. And these defendants, further answering, say that they are in- formed and believe it to be true that the said invention and dis- covery, and the same principle and combination * substantial and mi iterial parts thereof, patented in and by said letters patent No. 215,679, mentioned in the bill of complaint, was rneasiene and de- scribed in a printed publication—that is to say, in a book 27 ~~ entitled a “Hand Book on the Art of Brewing,” by one Ladis- | laus Von Wagner, published at W elm: ar , Germany, In 1877, on page 728 of volume 2. And these. defendants, further answering, say that they are in- formed and believe it to be true that the said invention and dis- covery, and the same principle and combination or substanti: il parts thereof, patented in and by said letters patent No. 215,679, men- tioned in the bill of complaint aforesaid, was mentioned and de- scribed in a printed publication—that is to say, In a book entitled “School of Beer Brewing,” published in the city of Leipzig, in Ger- many, and purchased by Casper Maus, Sr., at the city of Cincinnati, in the State of Ohio, in the years A. D. 1868 or 1864, a publication published, issued, and publicly cireulated and distributed prior to the supposed invention and discovery by said Meller and Hofmann of the said alleged invention, discovery, principle, and combination, the said description. being on page 358 of said publication. And these defendants, further answering, say that the apparatus and process used by them is as follows: A bung through which hole is bored from. top to bottom is inserfed in the bung-hole of a cask; a small rubber hose about five feet long is attached at one end to the hole at the top of said bung by means of a brass top. At the other end of the hose a tin vessel is attached thereto to receive the foam or beer that may be forced through this hose by the escaping carbonic acid gas generated by the beer in the cask ; this tin vessel is air-tight, is made to hold about two gallons, and is provided at om ye THE NEW PROCESS FERMENTATION CO. VS. the bot _ n with a small tap for drawing off the beer that may accu- mulate in it. Near where this first hose is attached to the tin vessel another pe is attached to said tin vessel and leads to and is attached to a stand-p 1 pe about three inches above its base; this stand-pipe is four inches in diameter, about fifteen feet high, and is open at the top. Ti iS SU sas ed with water to the height necessary to afford the desired pressure under which said defendants are to prepare their beer. The ressure In the casks can be increased or diminished by increasing or lessening the height of the water in the stand, the yea forming a combination by which a uniform and automati- lly controllable pressure of carbonic acid gas is maintained in the bane If the beer generates more gas than is required to establish the desired pressure, it will escape through the rubber hose and the water in the stand-pipe to which it is attached. This apparatus the defendant uses only after the beer has gone into the shavings cask, which apparatus they say is a very different apparatus from that described in the letters patent and in the specification annexed thereto. | | And these defendants, further answering, say that they deny that they ever contrived to injure said complainant or to defraud her of any profits, benefits, and advantages whatsoever ; and these defend- ants, answering specially and specifically to so much of said bill of complaint as requires them to answer the number of barrels of beer they have manufactured under the alleged patented process claimed by said complainants as. covered by her said letters patent, as well as the um ber of apparatus they have used in applying said process, avs that they have not manufactured any beer whatever by any process other than that last above described as being used b them, and by such process, as near as defendants are now 28 able to tell, they have manufactured since May 20th, 1879, about — barrels of beer. The. defendants are not using and have not used any apparatus such as is mentioned and described in complainant’s letters patent. All which matters and things these defendants are ready and willing to aver, maintain, and prove as this honorable court shall direct, and humbly pray to be hence dismissed with their reasonable costs and charges in this behalf most wrongfully sustained HARRINGTON & HOWE, DUNCAN, SMITH & DUNCAN, Solicitors for Defendants. And afterwards, to wit, 1n recess of said court, on the 4th day of October, 1884, the following { further proceedings in the above- entitled cause were had, to wit: Comes now the defendant, Casper J. Maus, by Messrs. Harring- ton and Howe and Messrs. Dune: an, Smith and Duncan, his solici- tors, and files his answer herein in the words followi ing, to wit: The respondent herein, Casper J. Maus, for. his separate answer to the bill of complaint, says that he is ignorant as to all matters and things therein set out, except that part thereof which charges that this defendant is doing business under the firm name and style - in and for said county and State, this — day of MAGDALENA MAUS ET AL. 23 of C. Maus in the city of Indianapolis; and that since the granting of the letters patent sued on, No. 215,679, this respondent, at In- diahapolis, used and still continues to use said alleged invention. As to said part of said bill, this respondent, answering, says that he is not now, and has not been since the issuing of said letters 29 patent, a member of the firm of C. Maus, in said city of In- dianapolis, and is not and has not been doing business under the firm name and style of C. Maus, and that he has not, at Indian-_ apolis, as in said bill charged, either alone or with others, since the granting of said letters patent No. 215,679, used said invention upon: which complainants claim is patented, as set out in the bill, and has not used, as in said bill, charged, any similar invention, and is not now using said invention or any similar invention, and. no injury. “98 resulted to complainants by any use of said alleged invention by this responue nt, and no profits have accrued to this respondent by using said invention, as charged in said bill. And in answer to interrogatory No. 1 he says he has not manu- factured any beer under said patented process. And these matters he is ready to verify in the manner the court shall order, and he prays he may go hence & recover his costs. CASPER J. MAUS. HARRINGTON & HOWE, Solicitors. STATE OF INDIANA, | : . 8s: Marion County, fj This — day of , 1881, personally appeared Casper J. Maus, defendant above named, and, being by me duly sworn, de- 30 poses and says that he has heard the foregoing answer read and that the same is true to the best of his knowledge and belief. | Subseribed and sworn to before the undersigned, notary public’ , 1881. And afterwards, to wit, in recess of said court, on the 5th day of October, 1881, the followi ing further proceedings in the above-entitled eause were had, to wit: Comes now the complainant, by wt ssrs. Banning & Banning, its solicitors, and files its replication herein in the words fol lowing, to wit : | 3 Replication. The replication of the New Process Fermentation Company, com- plainant, to the answer of Magdalena Maus, Albert C. Maus, Cas- per J. Maus, Frank A. Maus, and Mathias A. Maus, defendants. This replaint, saving and reserving unto itself, now and at all times baoocadl ter, all and all manner of ‘benefit and advant age of ex- ception which may be had or taken to the manifold insufficiencies 24 © THE NEW PROCESS FERMENTATION CO. VS. of the said answer, for replication thereunto says that it will aver, maintain, and prove its said bill of ing aint to be true, certain, and sufficient in law to be answered unto, and that the said answer of the said defendants is uncertain, untrue, and insufficient to be replied unto by this replaint, without this, that any other matter or thing whatsoever in said answer contained material or effectual in the law to be replied unto, and not. herein and hereby well and sufficiently replied unto, confessed or avoided, traversed or denied, is true; all which matters and things this replaint is and will be ready to aver, maintain, and prove as this honorable court shall direct, and humbly prays as in and by its said bill it has already prayed. BANNING & BANNING, Solicitors for Complainant. And afterwards, to wit, at the November term of said court, 1881],-. | on the or Ath vee pe february, 1882, before the Honorable a1 Walter ae i judge as aforesaid of said court, the fol- lowing cies proceedings in the above-entitled cause were had, to wit: : | Come now the defendants, by Dunéan, Smith & Dunean, their solicitors, and tie their motion it is ordered that Eugene G: Kreider, Esq., of the city of Indianapolis, be and he ‘is hereby, ap- pointed spec ial examiner in chancery in this cause, and is em- powered to cause to come before him, at the office of Duncan, Smith & Duncan, No. — [ast Washington street, in said city, upon proper notice given to the complainant, the witnesses of the defendants, and to take their depositions in writing and return the same duly certified into this court, addressed to the clerk thereof, at Indian- apolis. And afterwards, to wit, at the November term, 1881, of said court op the 25d day of February, 1882, before the Honorable Walter Q. Gresham, judge as aforesaid of said court, the following further pro- ceedings in the above-entitled cause were had to wit: : On motion of the defendants’ solicitors it is ordered that the de- fendants’ time for taking seein in this cause be extended sixty days. And af een SP to wit, at the May term of said court, on*the 12th day of June, 1884, before the Honorable Thomas o2 Drummond and the Honorable William A. Woods, judges of said court as aforesaid, the following further proceedings in the above-entitled cause were had, to wit: | This case having been heretofore argued by the counsel of the respective parties and considered by the court, it is ordered that the bill in t ra case be dismissed for want of e¢ juity ,at the costs of the plaintiff to be taxed; and the plaintiff thereupon prays an appeal to the Supreme Court of the United States, which is granted upon its giving bond according to law. Here follows the opinion of the court: MAGDALENA MAUS ET AL. 95 DRUMMOND, J.: Nearly all the claims in this case, as well as. the specifications, speak of the beer in what is called the kraeusen stage. The specifi- cations term “kraeusen” young beer, and also use the words “kraeu- sen stage,” the inference being that it refers to that conditionof the beer when it is considered young; but in the evidence of the plain- tiff one of the witnesses particularly ‘ describes what the kraeusen stage is. He calls kraeusen a fermenting sweet beer wort during the first st: age of the main fermentation, in which a foam of a very dense, curly; white appearance is formed on the surface, and it is so ter med because the beer has the appearance of curling, as kraevsen in German means “curls.” The kraeusen stage, he declares, is the new fermentation which sets in after the “ kraeusen beer.” has been added. Under the old method, when the beer was in this condition, in shavings casks and the bung was left open the foam and some of the ingredic nts of the beer. escaped through the bung-hole. As claimed in the plaintiff’s lla this $80 avoided by stopping up the bung-holes and devising a method by which the carbonic acid gas for med in the fermentation was permitted to ese ape upon a cer- tain pressure, Which removed the danger that otherwise would exist of bursting the casks or of injuring the beer when in fermentation or while being clarified. 3 All the claims except the hast, it is insisted by the plaintiff, are for a process, and that as to them the particular manner or instru- mentalities by which the process is accomplished are immaterial. It is well known that the term “ process” is not used in the stat- ute, but it has been uniformly held that there may be a patent for a process because it is regarded as an art, which is a word used in the statute; but it must be confessed that it is often. one of the most difficult questions to decide, in the practical application of claims made in a patent, what 1s a process which may be the subject of a patent. ‘To illustrate and prove this it is only necessary to refer to the case of Tilghman v. Mitchel], 19 Wall., 287, which was vo most elaborately argued and fully considered, and where a majority of the court held that although the manufacture of fat acids and glycerine from fatty or oily substances by-the action of water at a high temperature and pressure was.a process, yet that the patentee was limited to the particular method or means of ap- plying highly-heated water under pressure, pointed out in the speci- fications, although the claim was on its face broader than that, and to the case of Tilghman v. Proctor, 102 U. S., 707, where the same patent was in question, and where the court held that it was a pat- ent for a process, irrespective of the particular mode or form of ap- paratus for carrying it into effect. If, then, we now consider this last case in connection with one of the first cases decided by the Supreme Court, Corning v. Burden, 15 How., 252, and some of the intervening cases where patents have been sustained for a process, we ought to beable to determine the rule established by that court as to what isa process for which a patent can issue. In Corning 2. Burden the'‘court said that one might discov er a new and useful 4—298 26 THE NEW PROCESS FERMENTATION CO. VS. improvement in the process of dyeing, tanning, etc., irrespective of any particular form of machinery or mechanical device, and another might invent a labor-saving machine by which the same process 1 ight be performed, and each might be entitled to his patent; that one, by exposing india- -rubber to a certain degree of heat in mixture or connection with certain metallic salts, might produce a valuable product and be entitled to a patent for his discov ery as a process or improvement in the art, irrespective of mechanical devices; and another might invent a furnace or stove or some apparatus by which the same process might be carried on with a saving of labor and of expense, and hé w ould be entitled to a patent for his machine as an improvement in the art, and yet one could not have a patent for a machine nor the other for a process. Each would be entitled to a patent for the method of producing certain results, but not for the result itself. | 7 And the court further stated that it was when the term “ process” was used to represent the means of producing a result that it was patentable, and it would include all methods or means not effeeted by mechanism. ‘This definition is intelligible. A part of it, but not the whole, is cited in Tilghman v. Proctor. In Corning v. Burden ‘the court held that Burden es not dis- covered any new process, but a new machine or combination of mechanisin, by which the result was’ produced. In McClurg ». Kingsland, 1 How., 202, where the only change made in the me thod of casting iron rolls was by directing the metal into the mold when in a liquid state ata tangent, the patent was sustained, although there does not seem to have been much discussion directly upon the ‘patentability of the claim. All that was done iti that case was sim- ply to change the direction of the tube which carried the metal into the mold, the old method being to convey it from the furnace to the mold in a eae ee or pe rpendicular direction. In Mowry v. Whit- ney, 14 Wall.,620, and ‘Tilghman v. Proctor, already ref ferred to, the court sus aad the claim in each as a patent for a process. In the latter case the court says that the patent law. is not confined to new machines and new compositions of matter, but extends to any new or useful art and manufacture, and that a manufacturing process is an art. Goodyear’s patent was for a process, namely, vulcanizing india- rubber. The apparatus for performing the process was hot material and was not patented, and the court then refers to Neilson’s Englisi patent. Neilson’s patent was for the discovery which he made of applying a blast of hot air instead of cold to a smelting- furnace, and for describing a method by which that was accomplis shed, that method not being material; and the court declares that Neilson’s patent was si ustained asa process patent, and quotes the language of the court of exchequer—‘that the plaintiff did not merely ‘claim a principle, but a machine embodying a principle, and a very valu- able one;” and also the language of Lord Campbell in the House of Lords—that “the patent “must be taken to extend to all ma- D4 chines of whatever construction whereby the air is heated in- termediately between the blowing apparatus and the blast- MAGDALENA MAUS ET AL. 27 furnace;” and therefore it was unnecessary to compare one apparatus with another. The court, in Tilghman ». Proctor, also quotes the seuenage of Chief: Justice Taney, i in O’Reilly v. Morse, 15 How., 112, where he says, in commenting on Neilson’s case, “ that the manner in which air might be heated was immaterial.” ‘“ His patent was supported, because he (Neilson) had invented the mechanical appar atus by which the current of hot air could be thrownin. * * * The interposition of a heated receptacle in any form was the novelty he invented.” And after quoting still further from the opinion of the Chief Justice in O’Reillyv v. Morse the court states: “It seems to us that this clear and exact summary of the law affords the key to al- most every case that ‘ean arise. Whoever discovers that a certain useful result will be produced in any art by the use of certain‘means is entitled toa patent for it, provided he specifies the means. * * * It-is very certain that the means need not be a machine or an ap- paratus; it may be, as the court says, a process. A machine is a thing ; a process is an act or a mode of acting. * * * “The mixing of certain substances together , or the heating of a -substance to a certain temperature, is a process. If the mode of doing it, or the apparatus in or by which it may be done, is suffi- ciently obvious to suggest itself to persons skilled in the particul: ir art it is enough in the patent to point.out the process to be per- formed without giving superogatory directions as to the apparatus or method to be employ ed.” The majority of the court, in O’Reilly v. Morse, refused to sustain the Sth claim of Morse, because he disavowed the specific machinery or means mentioned, but claimed the use of the sities power of the electric current, however dev eloped, and this was held to be a prin- ciple simply. There has.always been some difference of opinion as to the true grounds upon which this rejection of the 8th claim of Morse was placed, it being maintained by some that Morse was not entitled to have a, patent, including all applications of what he termed electro- ‘magnetism in the transmission of words, letters, and signs, but only his own particular application. It has been uniformly held that a patent for a mere principle, or what is sometimes called a law of. nature, cannot be sustained; but in all the cases referred to, from the Neilson to the Tilghman patent, the law or laws of nature discovered were utilized, and it is said that in giving this construction to principle and process a patent for a process leaves the ‘field open to future inventors, whereas a patent .for a principle or a law of nature would give a monopoly to the person making that discovery ; so that the rule established by the Supreme Court is said to be that the patent for a process will in- clude every application of the principle that involves the use of the process described and claimed by the patentee; and this does not include the particular machinery or apparatus described by the patentee, but the mode of operation which is carried out by means of the apparatus. Walker on -Pat., sec. 14. In Neilson’s case the defendant did not use the means employ ed rine o-tage : ” we —" —— —_ ess Doan ee : hee eee iia eas er a, Me on TR See 28 THE NEW PROCESS FERMENTATION CO. VS. by. Neilson in throwing the hot air to the smelting furnace, for it was admitted he used a better device, but 1t was assumed that when once the idea existed in the mind of the superiority of a hot-air blast to a cold one any person skilled in smelting could devise his own — of introdue ing the hot air to the jeter es And see Cochrane . Deener, 94 U. S., 780, and Rubber Co. v. Goodyear, 9 Wall., 796. It is to be regretted that the diff iculty kona In the subject is SO great that a more intelligible distinction has not been made, for it must be admitted that the application of the rule which has been established by the Supreme Court to other cases as they hereafter arise may cause embarrassment, for there must be a method by which the principle or law which has been discovered is applied, and if that method is immaterial then it is difficult to understand why it does not become substantially a patent for the dis- 35 covery of the principle or the law of nature. Such seems to have been the opinion of Mr. Justice Nelson. See loote 7 Sillsbury, 1 Blatch., 445, and 2 Blateh., 260; and the case on ap- peal, 20 How., 378; and Le Roy v. Tatham, 14 How., 156, and 22 How., 132. | If it be true that the defendants have used the mechanical devices of the plaintiff, the question is whether, within these cases and the rules which have been established upon the subject, the plaintiff 1s enti eed, under his patent, to the claims which he has made and as t fort th, namely, the process of preparing beer for the market by “esi it under controllable pressure of carbonic acid gas when in the kraeusen stage; the process of treating it when in. the kraeusen stage by holding it in a vessel under automatically controllable pressure of carbonie acid gas; the process of preparing and _pre- serving beer for the market, holding it under controllable pressure of carbonic acid gas from the beginning of the kraeusen stage until it is tral sfeived to casks and bunged; to the method of preserving beer; to the process of treating 1t when in the second fermenting stage and the process of treating it in the course of its manufacture, und to the process of clarifying and settling beer in a series of shav- ings casks and equalizing the rate of fermentation in all of them, whereby the beeris more rapidly and thoroughly clarified, irrespect- ive of the mechanical means by which the specifications declare these various processes can be accomplished—that is to say, were Meller & Hofmann the first persons to hold the beer: when in its kraeusen stage under controllable pressure of carbonic acid gas, and were the means by which that result was accomplished immaterial ? There is not entire accord among the witnesses as to what consti- tutes the kracusen stage, but we may assume that it was understood to be when the beer was in that condition in the shavings casks that young beer was added, upon which fermentation was produced, and during which the proeess of clarification was going on, in addition iC? - to other results caused by the mode adopted to act upon the beer, because, as soon as the fermentation began by the introduction of the kraeusen, the shavings operated upon the ingredients contained in the beer. 3 Where, in a process, there is a combination of different substances, MAGDALENA MAUS ET AL. 29 and to that combination another substance or element is added by which a new result is obtained, that is a process which we can easily understand ; and, if unknown before, and it is useful, the person devising it may be entitled to a patent. Where there is a result produced by machinery, which result may be brought about by a process, and which may consist of different steps caused by a combination of different parts of the machine, and another part is added before unknown and by which a _ useful result is produced, that we can understand. The difficulty is to comprehend a process which may consist partly of a combination of different substances operating chemically and the combination of different parts of a machine operating mechanically. [f a process exists which consists of different steps created by machinery, and there is an —— in that process caused by a new element added to or taken away from the machinery, then the process existing and being known, ‘the party who-added or took away.the part of the machiner y might, if it were useful, be entitled to a patent, not for the process which formerly existed and was well known, but only for that which had been added to or taken from the mechanism. ‘To apply the principle to this case: “he process of manufacturing beer was not, at the time this patent was issued, per se patentable, for beer had long been manufactured; in the first place, by the preliminary steps which are referred to in the specifi- cations, and which have already been mentioned, and by adding to the beer the Kraeusen while it was in shavings casks, and then permitting fermentation to proceed, then clarifying it so as to retain in the beer some of the carbonie acid gas, which of itself consti- tuted an important ingredient in the beer, and then preparing it for ~ the market, so that, whatever was patentable in the process ob of manufacturing beer must consist of something new and useful being adde d to the process, chemically or mee chanie: lly, and for whatever was new and usefal the inventor might be en-- titled to a patent, whether it was connected with the chemistry o1 the mechanism of the process. It is very important to observe this distinction in discussing the patentability of a process. | It seems to be admitted in the various process cases decided in the Supreme Court which have been referred to, and others which might be named, if it consists of a chemical combination by which the particular result is produced, that does not prevent an- other inventor from making a mechanical combination which pro- duces the same result; otherwise there would be a revolution in what has always been understood to be a principle of the patent law, that a person could not patent a result, but only the means or acts by which the result was produced, and that certainly should be true as well of a chemical as a mechanical combination. It will be borne in mind that the patentee in this case insists that the invention is not limited to the particular instrumentalities de- scribed by which the:beer is held under controllable pressure of car- bonic acid gas when in the kraeusen stage, because it is said that other means than a water column may be adopted for equalizing the pressure of the gas without departing from: ‘the spirit of the in- OV THE NEW PROCESS FERMENTATION CO. VS. vention—as, for example, safety-valves, s springs, and the like—and it is added that the apparatus Is susceptible of many other varia- tions without affecting the process itself. Now, a water column had been previously used to regulate the pressure of the carbonic acid gas, and valves and springs had often been used also to regu- jate 1ts pressure, and a some of the witnesses of the pl: intiff seem to imply that the Wallace and Hicks devices, in use long be- fore the plaintiff’s patent, were, in their application to the manu- facture of bee r, like those of the p ylaintiff. [ am, the refore, not prepared to concede that Meller and Hofmann were the first to hold under controllable pressure of carbonic acid gas the beer when in the kraeusen stage, na as already stated, that had been done as well by a column of water as by springs and _ valves when the shavings casks were bunged and stopped, and the gas was permitted to escape when the pressure became so great as to raise the valve or force the spring. This is shown by the evi- dence of Maus and Sturm. It may be admitted that the mode adopted by the plaintiff is valuable, and that it has facilitated the manufacture of beer, both as to quality and as to time; but it seems to me that this has been caused by the more comp ete mechanical devices of the plaintiff, without really changing the principles upon which beer had been theretofore manufactured. No new principle or scientific fact has been discovered, as was true in the process patents which have already been referred to. The most that can be claimed is, and indeed the chief merit aseribed to the patent by the plaintiff’s counsel is, that it applies. the control- lable pressure created by the carbonic acid gas in a state of fermen-. tation at an earlier stage than was before known; but the essential parts of the apparatus used by the patentee were known before, and the same controllable pressure had been applied at various stages of the manufacture, and the application at the one stage of the condi- tion of the beer instead of another would seem not to involve any- thi ing more than a mere mechanical change which could be employed by any one skilled in the art. If we assume that the invention of a process always authorizes a patent irrespective of the means by which the result is produced, it would seem to be attended with very important and far-reaching conseque! — and to involve substantially a monopoly of the prin- ciple or of the discovery of a new scientific fact, and in this way we would impair, if not destroy, the effect given by the Supreme Court to the various rules which have been heretofore referred to as estab- lished by that Court, one of which has always been held to be OV firmly fixed, namely, that a person should only have a patent for the means by which the result is produced, and not for the result itself. [t follows, therefore, from what has been said, that the claims of the plaintiff for a particular process, irrespective of the means by which that process has been reached, cannot be sustained, and that the effort made to enk arge the construction of the patent law so as to cover any means which m: iy be used in the process of the manu- facture of beer, namely, by the methods which have been heretofore MAGDALENA MAUS ET AL. ) 31 substantially employed, cannot succeed. It being a process well known before, a person could only have a patent, for that by which the process was improved or cheapened, and it cannot be success- fully claimed, I think, that the defendants have used the various me- chanical devices which are set forth in the specifications.. It is not necessary, perhaps, to declare in this case that that those devices taken in the aggregate might not be the subject of a patent as me- chanical improvements in the manufacture of beer, but it is clear, if patentable at all, then it is only as such mechanical devices ; the result is the plaintiffs’ case fails on both grounds on which it is put— first, as a patent for a process as. described and claimed; and, secondly, for an infringement of the mechanical devices of the pat- ent. The bill must be dismissed. | Testimony. The following certificate of evidence was fiied on the 23d day of July, 1884. ee I hereby certify that at the hearing of this cause said parties re- spectively produced, read, and used in evidence the following depositions and exhibits, to wit: As its prima-facie evidence the complain: int read the de positions of George Bartholomae and Otto Zwietusch, the Meller and Hof- mann [patent], No. 215,679; assignment of said patent from George Bartholomae to the New Process Fermentation Company, and the charter. of said company; all which depositions and exhibits are as follows: | 38 Complainant’s Prima-Facie Hvidence. Testimony taken in behalf of the complainant in the above-entitled -ause, at the office of Messrs. Banning & Banning, Nos. 60 and 61 Honore building, corner Dearborn and Adams streets, Chie: AZO, Illinois, before Charles C. Linthicum, notary public, October 2 39, 1881, pursuant to the notice. hereto attached. : Present: Ephraim Banning, Esq., of counsel for complain: unt, and A. G. Howe, Esq., of counsel for defendants, the latter appearing for the purpose of cross-examination and reserving all rights to object to the evidence for all manner of reasons, and for the reason espe- cially of the taking of the evidence before a notary public who has not been appointed for said purpose. _ 5 Counsel for complainant offers in evidence the following instru- ments, viz: 1 The charter of the New Process Fermentation Company, dated at Springfield, Illinois, January 31, 1880, and recorded in the re- corder’s office of Cook county, Illinois, February 7, 1881, in book ) of corporations, page 426.. | : Baa ts a —— ’ 5 P': va TOPIC ‘6 ‘ To \. August Beiser, foreman at Gegg & Co.’s brewery, Indianapolis, 11. Have you ever seen this bung in actual use at the brewery? No; I have not seen it myself. 12. For what purpose was the bung constructed, if you know? oa Oe ; A. For retaining gases in casks or kegs while in a_ process of fermentation. Cross-examined by Epnram Bannina, Esq.: Q. 1. In your last answer you say the bung you have described was to be used for retaining gases in casks or kegs, ete.; do you know, of your own knowledge, at what particular time or stage It was to be apphed? 3 A. No; I don’t know of my own knowledge. It was ordered and made to be used when the gases were escaping after the kracusen were admitted. | (Counsel for complainant objects to all of the latter part of answer as not responsive to the question.) Q. 2. Do you know whether it: was to be applied the same as the apparatus described in Vorschule der Bierbrauerei, a cut of which appears on page 008 ? A. Yes, sir; it was the same. JACOB W. LOEPER. And the said Frank A. Maus, third witness, being duly sworn to testify the truth, the whole truth, and nothing but the truth, relating to said cause, deposes as follows: pe Examined by H. W. Harrinaton, Esq.: Q. 1. Name, age, residence, and occupation, and are you one of the defendants in this case? , A. Frank A. Maus; age, thirty-one; Indianapolis, Indiana; one of the managers of C. Maus’ brewery; I am one of the defendants in this case. : 62 Q. 2. Will you state whether you are working in the brewery named in the bill, and having charge of the same before and at the time this suit was commenced ? A. I was working at the brewery named at the time and a num- ber of years previous to the commencement of this suit, and am still employed there. Q. 3. Do you recollect before this suit of a man by the name of Otto Zwietusch, calling at the brewery, having a conversation with you in reference to the Meller and Hofmann patent? If yea, please state what was said by him and by you on that occasion. — A. I recollect Mr. Zwietusch calling at the brewery a few months previous to the bringing of this suit. He represented himself as agent or superintendent of the New Process Fermentation Company. He offered to sell us their apparatus to be used in our brewery. I told him that we did not need the apparatus. He asked then if “ ‘ MAGDALENA MAUS ET AL. JO we had any apparatus in use for controlling fermentation of beer. I told him we had one that was modeled after an apparatus used by my brother at Nashville, Tennessee, in 1877,in his brewery. He asked how it was constructed. I told him that it consisted of a body of water in a stand-pipe, connected at the base by rubber hose which was connected with the top of the casks. He claimed that that was an infringement on their patent. -I told him that that could not be the case, because my brother applied for a patent on his ap- paratus long before they obtained théirs, and that his application was rejected because it was anticipated by prior patents. Mr. Zwietusch further said that he did not care what apparatus we used ; that they claimed a patent on the process; that if we wanted to use our apparatus we had to obtain license from their company to carry out the process on which they claimed a patent; that he didn’t care what kind of apparatus we used, whether it was water column or mechanical, he still considered it an infringement on their patent. I cited a number of patents on apparatus granted many years before their patent was, which carries out the process which he claims to have patented. He offered to make a reduction on the regular price if we would take a license from their company and use our apparatus. We declined to take a license from him. Q. 4. Will you state and deseribe what apparatus you were using et that time, and at the-time of the commencement of this suit, in your brewery described in the bill? . rm ‘ ’ ° : A. The apparatus used was constructed as follows: Starting at the bung-hole of the cask, we inserted a spigot at the bung hole and attached a rubber hose to the spigot. That hose led to the top ofa small cylinder, which it entered. A small pipe was also attached to the top of the cylinder, which was connected at the other end to the base of a water column. In some cases this little pipe led down the center of the water column, through the water, and so allowed . the gas to escape through the water. “The rubber hose connected the casks separately to the column of water, and the pressure of one cask would not affect the pressure in the other. Q. 5. If you said anything further to the person named in your previous answer with reference to what patents had been obtained on the apparatus to carry out the process, you may state what patents you named to him, and also. what you said, if anything, to him about his company’s patent on the apparatus they used. By company, I should have said Meller & Hofmann. A. I cited the Hicks patent bung as carrying out their process ; also the patent of Wallace, of Cincinnati, Ohio; and that their process was used 1:1 making champagne, and that [I had seen 63 a bung described in an old publication which would carry, out the same process. I mentioned this to him; that Bartholomae’s application for a patent was on the apparatus on con- necting a seiles of casks, and afterwards they obtained the patent on the. process. Q. 6. Will you give a description of a patent applied for by your brother, Clement A. Maus, and also the date, as near as you can, : r ve Q € % Y+é y € , v 2. 5. When was that company organized, and for what purpose ? MAGDALENA MAUS ET AL. 59 (Responcents object to part of question asking for what = the Wallace Company was organized, on the eround that it wa irreley ant so far as the purpose is concerned.) : A. The company was organized last summer some time, for the purpose of manufacturing and selling apparatus patented by George W -2e 4. If you have acircular of the Wallace C ompany present, will ate. | have the kindness to produce it and allow it to be made a part of your deposition ? 7 A. I have e, and make the same an exhibit. Q. 5. How long have you been using the apparatus described in your direct examination, on shavings asks ? A. It was either in the fall of 1878 or spring of 1879 that we commenced. We did not use it on any kind of casks before that. 66 (). 6. How soon after the beer'is drawn into the shavings | casks and the kraeusen and finings put in do you apply this apparatus, and how long do you keep it on the casks for the purpose of controlling the pressure of the carbonic acid gas? A. As soon as the kraeusen and finings are “added to the ruh beer in the shavings casks we attach the apparatus. Sometimes, however, it is not attached until a day or two after they are added, and we keep it attached from eight to twenty days, till the beer is drawn off for the market. Q. 7. On an average do you succeed in getting the beer ready for mi arket more quickly when this apparatus is used than you were able to do before you commenced using it ? A. On an average there would be a gain of about two days by the use of the app: aratus. (). 8. Are you not also able, by the use of your apparatus, to keep the beer from running out of the bung-hole with the foam or froth, and thus rendering the cellars foul and impure? A. When the apparatus is attached to a cask that is full, foam and yeast are carried through the tube into the cylinder, from which it is afterwards withdrawn, and prevents the yeast from running over.. If the cylinder were not used it would require tliat the casks ‘be not filled up to within a few inches of the bung. 3 Q. 9. Before bunging apparatuses came into use for the purpose mentioned in complainant’s patent, was it not a common and trouble- some experience that the pressure of the gas would cause the foam and yeast, and also considerable beer, to overflow through the bung- hole, and thus to render the cellars foul and impure ? A. Where no apparatus was used the form and yeast ssi through the bung-hole. Q. 10. Did you ever see that vent-bung, described in the book re- ferred to, in use? A. I have not seen it in use, but it has been used in our /brewery— last year some time. Q. 11. The apparatus used in your brewery accelerates the clari- fying of ‘the beer, does it not? A. Yes, sir; ut does accelerate it somewhat. ; ; ' : & 60 THE NEW PROCESS FERMENTATION co. VS Are the easks connected together by the apparatus you are using now ? A. Each cask is connected separately to the cylinder, and the gas » from each escapes into the cylinder, and the gas is carried thence into the water column, said column determining the pressure. ‘The apparatus now used by us is the same as that shown in the circular of the Wallace Improved Fermentation Company, and has been In use in our brewery about a year. Without the cylinder the yeast. and foam would be carried into the water column and necessitate frequent change. Q. 13. In your answer to question 15, direct examination, you say, among other things, that in 1874 or 1875 Mr. Wallace offered his apparatus to be put in your brewery to be used for automatically controlling fermentation of beer while in shavings casks. Do you remember whether Mr. Wallace said anything “about “ shavings easks,” and did you have any conversation with him porns time ¢ A. I had a conversation personally with him, and he sail he had a patent on appar atus for the purpose of controlling ferment ition, p } % ‘ « G/ / 2 - 2 | Ses / : ae Hebel ane _ SOE SMES RE ANG RR ty as % . — N 5 . \ ® Ny SS = A Waid tb al MNP t J MiodiowiaL ee i e i STD RAPE Dah Re Sa el =. 25.9 MAGDALENA MAUS ET AL. ee On the outer ends of the chambers A and A’ small air-cocks, m and m’, are fastened. On the end of. the flexible tube Gia plug, | J, 1s pe provided with a small check- valve, x The operation is as rt he All cocks being shut, the chamber A is‘ filled with water sevtenid the opening D w hen this opening is closed tight and the air- -cock m opened. The plug J is then driven into the | top of a beer barrel to be tapped, and the other end of the flexible tube G connected with the end of the pipe F’ attached to the inner bottom of the chamber A’. Thecocks EK and n’ are then opened. The valve 2 in the plug J will be kept shut by the pressure of the gases contained in the beer barrel. The water in the chamber A will pass through the pipe N, as soon as the cock E is opened, into the chamber A’, compressing thereby the air contained in said chamber, and forces the air out of this chamber A’, through the pipe F’, into the beer barrel as fast as the beer is withdrawn out of the barrel, without allowing any escape of the carbonic acid gas or any other gases contained in said barrel. When the water has all passed _ from the chamber A into the chamber A’ the cocks E, n’, and m are shut, the flexible tube G is disconnected from the pipe F’, and the apparatus turned around its centre, B, so that the chamber A’ will come on the top. The flexible tube G is then connected with the end of the pipe F, and the cocks m’, n, and E opened, when the water now contained in the chamber A’ will pass into the chamber A, displacing the air now contained in this chamber A, compressing and forcing said air ‘through the pipe F into the beer barrel, in the same manner as above deies’ bed. The pipes N and N’ are arranged to tae any noise from the water falling from one chamber into the other, and may be dis- pensed with rand only one connection made between the two cham- bers, provided with a suitable cock. What I claim as my invention, and desire to secure by letters patent, is— The construction of two chambers or vessels, A and A’, connected together by a pipe or pipes. provided with suitable cocks, and pro- vided with escape-pipes, F and F”’, the whole being combined and. arranged to turn on its axis, B, and operating in the manner and for the purposes described. | | 7 W. DIETRICHSEN. Witnesses: HENRY E. ROE DER, . ULYSSES BAKER. marked p. 1.) (Here follows diagram ee Shc eenaitian ending oe A AN Et eee MERU RLT SA te te ete ee es nV el parr nnse eet ASS TNA: ERAGE BROOME NN ee £0 Bes AR Sacce il «9 Oy THE NEW PROCESS FERMENTATION CO. YS. 92 No. 115,950, issued to William Gilham June 13, 1871, marked “ Defendants’ Exhibit Gilham Patent:” 115,950. UnrIrTep STATES PATENT OFFICE. WILLIAM GILHAM, of Richmond, Virginia. Improvement in Processes and Apparatus for the Manufacture of Sparkling Wines. Specification forming part of Letters Patent No. 115,950, dated June 13, 1871. J, William Gilham, of the city of Richmond and State of Vir- ginia, have invented a new and improved process and apparatus for the manufacture of sparkling wine by its own fermentation in bulk, of which the following is a specification : Nature and Objects of the Invention. The object of my invention is to produce sparkling wine in bulk or on a large scale by causing the wine to become charged under great pressure with the carbonic acid gas generated by itself during the process of fermentation, thus forming a natural sparkling wine similar to that which has hitherto only been produced on a small scale by bottling unfermented wine, and not a factitious article, such as may be produced by the injection therein of gas derived from other sources. The first part of my invention relates to the process above al- luded to, the essential part of which consists in confining 93 the wines in an incipient state of fermentation and in large quantities ‘within strong and tight vessels provided with proper tubes or pipes and valves or cocks, until the wine shall have sufficiently fermented to become charged with gas under any proper degree of pressure, when it may be drawn off and_ bottled, thus greatly reducing the expense and difficulty incurred in producing wines of this class. The second part of the invention relates to the apparatus by which the above result is effected, illustrated forms of which will be here- inafter described, as follows: First, an exterior metallic casing or wine tank, made so as to be air or gas tight under strong interior pressure, and adapted to contain an interior open vessel of wood or other proper material, the apparatus being provided with aseries of pipes and cocks for filling and drawing off its contents, and also with a safety-valve and pressure-gage ; second, a metallic wine-tank, as above, containing an interior vessel provided with a tight head or cover, and having a system of pipes, &c., arranged in a manner slightly differing from the first; third, a triple or three-way valve- cock, which is preferably used as a substitute for the arrangement of pipes and cocks shown and described under first. in AAEM A, MAGDALENA MAUS ET AL. R9 94 Description of the Accompanying Drawing. Figure 1 is a vertical section illustrating the first form of my ap- paratus. Fig. 2 is'a vertical section, on a larger scale, illustrating the second form thereof, having an arrangement adapted to act as a safety, pressure, and vacuum valve. Fig. 5 is a vertical section illustrativ eof a wine-tank with flanged cast-metal head, having a triple or three-way cock attached. Fig. 4 is a sectional elevation of my improved triple valve cock. Fig. 5 1s a horizontal section of the same on the linex a, Fig. 4. : General Description. A represents an exterior metallic casing or wine-tank, made preferably of wrought iron, and of sufficient strength to resist an in- terior pressure of one hundred and fifty pounds or more to the square inch, and supported in suitable manner. It is made in two parts, so that access may be had to its interior when required, These may be equal fl inged cylinders united by bolts, as shown in Fig. 1, or a plate-iron cylinder, with cast-iron cap, as shown in Fig. 4, may be employed, the Joints in either case being made gas-tight by packing. Bis a cylinder or cask, which may be of wood, and either open or closed at'top. It nearly fills the interior of 95 the tank A, but may be removed therefrom when necessary. In that form of apparatus shown in Fig. 1 the tank has three openings for the reception of the pipes C DE, two of which communicate with the air-space above the wine in the cask B, while’ the third E is a duplicate pipe, one branch of which passes down- ward to within a few inches of the bottom of the cask, while the other extends to the wi some of the same. Both may have a com- mon cock. The pipes C and D,to the former of which is connected a safety-valve and to the latter a pressure-gage, are also: provided with cocks. These pipes open into the space above the liquid. ‘In the apparatus shown in Fig. 2 the cask B is provided with a tight head, B’, having three apertures for the insertion of the pipes C D E, while a fourth aperture is formed in the head of the tank A for the reception of the curved pipe I, which forms a branch of the safety-valve pipe C, and communicates with the space over the head of the cask B. 96 This pipe e, after ascending upwardly from the opening in the tank, is recurved, passing into the glass tube or enlarge- ment F, connected by the horizontal tube f to the similar tube G, which communicates with the pipe c, above which «@ safety-valve is connected with the pipe. The tubes I’ and G are each partially filled with mercury. The construction, arrangement, and attac hment of the pipes D and E are similar ,to those of the corresponding pipes above described. The form of tank shown in Fig. 3 has a cast-iron head with a flange, by which it is connected to the Sneed body of the tank, and a single opening to receive the triple cock H, more fully shown in Figs. “4 and 5. ‘he cock H has three separate connections with the interior of the tank through the openings h h' h?, one being provided 12—298 90 THE NEW PROCESS FERMENTATION CO. VS. ith a _ or plated metal tube extending to within six or eight vier of the bottom of the cask B for drawing off the clear wine. The second has a similar tube extending to the “bottom of the tube, and the third opens into the gas over the wine. The cock has three branches, h? h* h®, for the att ichment of corresponding exterior pipes. When test ting pressure the gage may be attached to either of the branches connecting with the tubes le: iding into the wine; but the safety-valve can only be attached to the one communicating with the gas above. The openingsh h! h?2 are provided with conical valves 1° h* h® (fitting corresponding seats), which may be operated to open or close, as desired, by means of the regularly headed screw-plugs h? h!° h!, which work through the caps covering the three heads of the de- vice. | The advantages of this cock 1n connection with a tank having but one opening is that there is less liab litv to leakage or escape of gas than where each pipe passes through a separate opening. For greater economy and effectiveness it is preferred to make the tanks of large size—say four feet 1n diameter and eight feet high. They shoul | be able to bear a pressure of at least one hundred and fifty pounds to the square inch. . Operation. The cask B is partially filled with new wine in an active state of fermentation. In the first and third forms, where an open interior vessel is used, the wine may occupy two-thirds of the interior capacity of the tank A. Where a closed interior vessel is employed = wine should not more than two-thirds fill the latter. Sirup may be added at this time, or at a later period, through the pipe D, as the manu- facturer may prefer or the condition of the wine may require. The stop-cocks are left open for a day or two that the atmospheric air may be expelled by the gas generated in the wine, after which the cocks de are closed and the safety-valve adjusted to the required pressure—one hundred pounds, for example, to the square inch. When the pressure reaches the desired maximum any excess of gas will escape through the valve, and will continue toe be discharged until fermentation ceases, When the process of fermentation is com- pleted the cock ¢ is closed, and when the wine has become thoroughly cleared by the deposition of its sediment the shorter branch of the pipe E is connected with the bottling-machine and the wine bottled in the same manner as soda-water. After the clear wine has been drawn off a filter is attached to the longer branch of the.pipe E, which is in like manner connected with the: bottling-machine, and the turbid wine near the bottom of the cask is drawn off and bottled in a similar way. The process is the same when the second form of apparatus is used. In. this case, however, the interior pressure on the cask B must be balanced in order to prevent bursting or blow- ing out of its head. This is effected by means of the tubes F f G, which communicate with the safety-valve and interior space over the head of the cask B, an excess of pressure within the cask causing the mercury within the tube G to be depressed, while that in F rises until the gas is permitted to flow over through G f F f’ into the space } ee me 7 ee Sa MAGDALENA MAUS ET AL. 91 over the head of the cask and establish an equilibrium of pressure within and without the same. In order to maintain a constant and uniform pressure over the Wine as it is drawn off and prevent the escape of the gas natu- rally confined therein, the safety-valve may be removed and the pipe connected:to a gas- generator under a pressure slightly greater than that on the interior of the apparatus. This does not permit any of the gas within the wine to escape, while the wine, being already fully saturated, will not take up any of the gas forced in by the generator. , Claims. I claim as my invention— : Sone 1. The process of producing sparkling wine by its own fermenta- tion in bulk, by enclosing it in tight vessels provided with suitable . pipes and cocks, and causing the wine to become charged with the gas generated by its own fermentation under any required amount of ers, substantially as herein set forth. 3 Al apparatus comprising an exterior closed vessel, A, and open interior vessel B, in connection with a series of pipes or tubes ,C DE, provided with cocks c d e, safety-valve I, and pressure- vage d, all constructed, arranged, and oper rating substantially as and - ‘the a herein described. An apparatus comprising an exterior closed "| Aa and in- ead closed vessel B, in connection with a series of tubes, C F’ F ‘G DE, provided with cocks ¢ d e, safety-valve I, and pressure-gage J, as and for the purposes herein specified. 4, The compound three-way cock H, having three sets of openings, | ‘hh Wt NA 12 h®, provided with conical valves or plugs h® h? h®, sub- sti raed as and for the purposes specified. | | E i ae flanged wrought or plate metal tank A, having a cast-metal hes oe f 2 with a single. opening, a’, in combin: ation with the three- way cock H, pipes C D E, and interior vessel, B, substantially as and for the purposes described. To the foregoing specification of my improved process and appa- ratus for manuf: icturing sparkling wine by its own fermentation in bulk I have set my hand this 20th day of April, 1871. WILLIAM GILHAM. Witnesses : JOHN OTT: JOHN EVANS, JR. (Here follows diagram marked p. 97.) — ne aa TET AS es TS ON IS TT ae . ne nt AAPL nents eet ee OE Tt De PR ee ae SRS z ‘ ~s + Po Free Sorte: TF eT a ee Kaen a Be pean ae a ae hated | ~ *. ‘te: Ae igs A RET at le) bo THE NEW PROCESS FERMENTATION CO. VS. No. 201,982, issued to George Bartholomae April 2, 1878, marked “ Defendants’ E shibit Bartholomae Patent:’ le) OD Unirep STATES PATENT OFFICE. GEORGE BARTHOLOMAE, of Chicago, Illinois. Improvement in Processes for Fermenting Beer. Specification forming part of Letters Patent No. 201,982, dated April 2, 1878; application filed December 10, 1877. To all whom it may concern: Be it known that I, George Bartholomae, of Chicago, county of Cook, and State of Illinois, have invented certain new and useful improvements in the art of making beer, and I hereby declare the following to be a full, clear, and exact description thereof, reference . being had to the accompanying drawing, making a part of this spec ification, in which the figure) represents a vertical cross-section of my apparatus. Heretofore, in brewing beer, after cooking and cooling, the beer is put into open vessels to ferment. The fermentation lasts, say, fif- teen days, and then the beer is drawn off from the yeast into large casks, nearly closed, where it remains from one to six months to settle, and among the sediment there will still remain some yeast. The beer is then “pumped into the “shavings casks,” and is mixed ‘ with young beer (kraeusen), which starts a mild refermentation, lasting from ten to fifteen days, until the generation of the gas is reduced toa minimum. During this fermentation the beer “effer- vesees through means of the carbonic acid gas rising, and the lighter particles are thrown to the top, forming a “foam, which, during the ebullition, runs over the edges of the opening in the casks, and cpeieerats along a small portion (more or lees) of the beer, which is wasted, and this waste has to be replaced by refilling with new beer daily. This wastage I estimate, from practical experience in the manufacture, to be about one barrel in every forty; more or less. This waste beer, running down around the easks and on the floor of the cellars, sours and produces a mildew which impregnates the air with foul vapors highly injurious to the workmen, and perme ating the beer in the casks altering its flavor, and, in instances where the mildew penetrates the wood of the casks, spoiling the beer entirely. This fouling of the barrels ih pets that they should be washed out- side from time to time, and the water used in this washing raises always the temperature of the cellar; and wastes the ice which is therein ese -d to keep the temperature about 41° Fahrenheit. After the beer has been in the shavings casks from ten to fifteen days, the gelatine or other clarifying mediurn is introduced, and at the end of a couple of days the beer is entirely clear. The shavings cask is then bunged up ‘tightly for from three to five days, to confine the last portions of the rising carbonic acid gas. This charges the beer with carbonic acid gas (CO,), so as to make it merchantable, and it » MAGDALENA MAUS ET AL. | — must be drawn off at once into kegs and used; otherwise the pressure on the shavings cask may burst it. In selecting the time for drawing off the beer from the shavings casks into the kegs to send it to market, the beer should never be under a pressure of over seven pounds to the square inch; other- wise the keg fills with foam in the drawing off, and the bubbles, subsiding, leave an air-space over the liquid beer, which absorbs a portion of the carbonic acid gas, and soon leaves the beer in the keg flat. Arriving at the proper decree. of pressure when to put the beer in kegs is, as the art is now practiced, merely a matter of judg- ment or guess by the foreman, and no two shavings casks will be drawn off at precisely the same pressure, and the effer rvescing quali- ties of the beer will vary considerably, en to the detriment of the sales by the brewer. If the beer is not put in market at once at this stage the bungs have to be removed from the casks and the gas allowed to escape. | Then the escaping gas stirs up the yeast and impurities. that Sn e settled to the bottom, and the beer has to go through again the en tire shavings-cask step in the process. Under the processes now in use it requires about twenty days to put beer on the market after it is pumped into the shavings casks. This delay requires brewers to keep a large amount of capital in- vested during the time in unfinished beer, anid it is highly important to decrease this time of preparation. ~ The object of my invention is to overcome the difficulties above- named, and also to produce in a shorter time a better beer, contain- ing more sugar and less alcohol. My invention consists in treating the hoes when in the shavings- cask step of the process of manufacture, in a series of closed casks under equalized automatically controllable carbonic acid gas press- ure, generated by the mild fermentation of the beer. This equal- izes the pressure in all the casks, and the effervescing quality of the beer in all the casks is uniform. 99 The casks being closed, none of the beer wastes by run- ning over, and the foul smells and washing of the casks and cellars are avoided. The escaping carbonic acid gas is conducted from the relief-valve to the open air, and does not settle in the brew- ing cellars to endanger life. In order that those skilled in. the art may make and use my in- vention, I will proceed to describe the manner in which I have car- ‘ried it out. 3 In the said drawings, A A are shaving casks having faucets a a, provided with valves 7% inserted tightly in their bungs. These faucets are connected to taps N on the main pipe a’ by means of flexible sections &, provided with couplings. The taps or connec- tions N have valves 7’ 7’. Pipe a’ bends upward and _ passes above the level of a water column, C, and then passing downward enters the base of the column at x, where it is provided with a cock, 0’. The water column or vessel ‘C has a faucet, d, to draw off water when desired to decrease the pressure. A depending branch-pipe, e, and cock e’ serve to discharge any cgndensed moisture from pipe "A RS RR A RR ar taAaR ee poy ond ip 94 THE NEW PROCESS FERMEN ‘TATION CO. VS. a’,and a pressure-gage, ¢*, serves to indicate the pressure. {00 By means of a gas-generator, located at h and connected to pipe a’ by means of pipe f, having cock g, | am enabled. to test the joints of the apparatus and drive ‘all atmospheric air from the pipes when the operation begins. 3 At the top of the water column is a conical cap terminating in a pipe, E, which is projected out of the building and leads all the gas into the open air. Located within this cap is a conical diaphragm, C’, centrally located, so that should the escape of the gas become so rapid as to lift the body of water upward the water will be arrested by the diaphragm while the gas escapes around its edges. ! It is evide nt that the pressure in all the shavings casks connected with pipea’ will be equal and be kept so indefinitely by means of the water column, and, as far as the enlivening of the beer is con- cerned, it is always ready for market, be if in ten days or four months, whereas in processes now practiced peer has to be “ bunged ” at a particular time for a particular day’s market. My process en- ables the brewer to keep on hand merchantable beer which can be shipped instantly; or, if .trade decreases, it enables him to keep iy stock on hand without deterio-ation till the demand is made for it. 101 By using my apparatus [ am enabled to clarify the beer and clear it of impurities in eight days or less, mr in the ordinary processes it takes from twelve to twenty days. This immense gain in time I ascribe to the following action: The air being forced out of the pipes, the carbonic acid fills them and the space in the casks above the beer; then the gas slowly accumulates in the space above the beer until the pressure above is such as to overcome the density of the beer and re-enter it, so as to charge it up to the pressure for which the column is set. This creates, in a a manner, an equilibriam between the rising bubbles and the press- ure above, during which gravity can act rapidly y on the yeast and impurities of the beer and carry them down among the shavings at the bottom of the cask, where they remain. I introduce the clarifying gelatine into my shavings casks after the beer is introduced and before connecting with pipe a’, and act- ual practice has demonstrated to me that to “clarify the beer by my process only requires about one-half of the gelatine heretofore used. This saving, together with the saving of the waste beer heretofore mentioned (one or more barrels in every forty), and the saving of labor, will greatly cheapen the production of beer. 102 When I desire to make beer for bottling, I attach my ap- paratus to the settling casks filled with beer, and no young beer (kraeusen) is added, but a little gelatine is added, and this remains for from fourteen to tw enty days, until it becomes lively, and it is then bottled. [ find that bottled beer prepared this way is hea!thier, and will last in good condition two or three months, whereas the beer bot- tled now last- only for eight or ten days, if pure and not steamed after bottling, the latter spoiling the aroma and flavor. G. BARTHOLOMAE. Process for Fermenting Beer. No. 201,982. Patented April 2, 1878. { % 7 SV0. 29 \ é J Ly 4 ( S Af : (/ JS 7, i f that shall have a fixed and definite c capacity of “retaining the gases. In the drawings, A is the valve-case, provided with the vent a, for the escape of the gas. B is a cap on the yalve-case. C is the weighted valve, provided with the soft rubber c, or other suitable packing, to close the valve-seat and exclude the air. The rod D, at- tached to or formed upon the top of the Valve C, passes through a hole 3 in the cap and serves as a guide for the valve. Eisa verti: - 96 THE NEW PROCESS FERMENTATION CO. VS. cally-projecting conical valve-seat, with an opening, e, through the whole length. It is screwed in the bottom of the valve-case, and its lower end is slightly conical, and serew-threaded to secure itina hole though the “bung of a cask. Thus constructed, the valve can be readily taken apart for clean- ing. The form of the valve and valve-seat may be slightly varied; but it is desirable that the points of contact of the two should extend upon a small surface only, to prevent sealing of the valve by ag- glutination, and the part of the valve resting on the valve-seat be of yielding material, so as to retain the amount of carbonic acid gas in the liquor that is desired, and so that if the liquor should gen- erate more gas than is desired it will raise the valve and allow the gas to escape 1n the ease and through the vent a. The weighted valves are made of different c: ipacities, -but so fixed or numbered that each valve shall have a definite capacity. These valves are generaily used by careless and inexperienced workmen, and unless the valve has a fixed and definite capacity, and is so constructed as not to easily get out of order or be tampered with, the same danger is encountered as in “over-bunging ”—viz., the bursting of the cask by the accumulation of gas. The rod or guide D, extending above the cap, allows the valve to be raised by hand, and the sound of the gas in escaping indicates the stage of ferme ntation and the condition of the | liquor. This valve is particularly useful i 1D Ci asks containing lager beer that is undergoing the “cleaning process,’ ' preventing the rd: anger of over- bunging, and thereby the “beer from be coming ‘ too wild” before drawing off into barrels and kegs, and also when the air -pump 1s used in forcing the beer from the cleaning-casks into smaller vessels, as the surplus air and gas will escape through the valve without endangering the cask. Iam aware that vent-plugs controlled by spring-pressure, or ad- justable spring vent-valves regulated by a thumb-nut, are not new; but the first cannot accomplish the result that I have in view (automatic relief to casks), and the second can be too easily tam- ° pered with to be reliable and safe. Having thus described my invention, I claim— 1. A safety-valve for casks of fermenting liquor, having a pre- determined and fixed capacity for retaining and allowing | gases to escape, formed of a weighted valve having a projecting stem, and provided with an elastic packing placed in a recess in its lower end, resting on the upper extremity of a perforated conical valve-seat, substantially as shown and penny 2. The combination of the case A and valve C, having a projecting stem, D, and inclosing a soft rubber packing, , with a perforated conical valve-seat, substantially as and for the purpose set forth. : HENRY SHLAUDEMAN. Witnesses : CHAS. M. FLETCHER, CHAS. P. HOUSUM. (Here follows diagram marked p. 105.) INVENTOR. | ‘Ye wv Shlaudemaw | Adis Pit NZ wo SS Yj =~ Cy Yor YZ SL pips ONWNGG LA Yo " \ NREL Wifi thtilitiiiieeg G,- Ss IS Patented June tl, 1878. Yu WN ~\ 'H. SHLAUDEMAN. Safety-Valve for Permented-Liquor Cask. No. 204,687 eels “t WITNESSES: : | | Ser ae se ; : thas es LIE | e~ CHAS. PF. HUUSUM. (Here follows diagram marked p. 105.) ET AL. M AGDALEN A MAUS 106 No. 205,572, issued to John M. Pfaudler July 2, 1878, marked “ Defendants’ Exhibit Pfaudler Patent :’ UnitEeD STATES PATENT OFFICE. JoHn M. PraupueEr, of Rochester, New York. Improvement in Apparatus for Regulating the Pressure in a Series of | Fermenting- Vessels. : Specification forming part df Letters Patent No. 205,572, dated July . 2, 1878; application filed June 8, 1878. To all whom it may concern: Be it known that I, John M. Pfaudler, of Rochester, in the county of Monroe and State of New York, have invented a iew and im- proved pressure-regulator for fermenting liquids, of which the fol- lowing is a specific: ation : Figure 1, sheet 1, represents a partly sectional front or side eleva- tion of my improv ed pressure-regulator, the section being taken on the line ww of Fig. 4, sheet 2. Bi ig. 2, sheet 1, is a det: uil se es of the check-valve in one of the section-pipes. Fig. 3, sheet 2, is an end elevation of the pressure-regulator, partly seen in section on sae line cxof Fig. 1. Fig. 4 isa vertical cross-section of the same, taken on the line y y of Fig. 1. Similar letters of reference indie. ate corresponding parts.. The invention has for its object to provide an effective apparatus for equalizing the pressure in a series of hogsheads or other vessels containing beer, wines, or other liquids in a state of fermentation, and for reculating the pressure of the gas caused by such ferment: ation so that it shall not exceed a certain number of pounds to the square. inch, previously determined and gaged in the said apparatus. ‘The invention consists in the combination of one or more section- pipes, each having branch pipes connecting it with one or more fer- mentation-vessels, peas a check-valve, and a stop-cock with a main pipe connected by branch pipes and stop-cocks to intercommunieat- ing cylinders or receivers provided or corinected with pressure-gage, safety -valve, and blow-off cocks, as will be ‘hereinafter described and claimed. A is one of the section-pipes, a which there are one or any .num- ber, according to the number of hogsheads or other vessels required to be-in operation at the same time. The said vessels are arranged in sections of a certain number—say six—and each connected by a hose to one of the branch pipes B of their common section-pipe, A. The latter are attached to one common main pipe, I, and each of them is provided with a stop-cock, D, for shutting off communica- tion with the main pipe E in case of leakage in the fermenting-ves- sels, or when attaching their hose to the pipes Bb, or for ot ther pur- poses. Between the cock D and the pipe B nearest to it the section- pipe A is provided with a check-valve, C, which opens when the pressure in the fermenting-vessels prepondet rates, and allows the gas 15—298 etalon nian (Here follows diagram marked p. 100. mE ihe th rm MAGDALENA MAUS ET AL. 97 106 No. 205,572, .issued to: John M. Pfaudler July 2, 1878, marked “ Defendants’ Exhibit Pfaudler Patent :’ : Unitep STATES PATENT OFFICE. JoHN M. Praup er, of Rochester, New York. Improvement in Apparatus for Regulating th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1886_298%3A0. Public record. Not legal advice.